We must continue to defend civil liberties, no matter how difficult it seems

There is never a harder time to argue in defence of civil liberties than in the aftermath of a horrific and deadly terrorist attack. It’s easy to argue for universal rights during periods of relative stability, after all, what harm could possibly come to pass? But during times of bloodshed, of anger and of disgust, it’s somewhat harder to step back and make the case for civil liberties, even when that case appears to suggest a lack of will to tackle the cause of the bloodshed. But it is important that we do so, because we can be sure that those that are the enemies of liberty and freedom will be seizing the opportunity (whilst simultaneously failing to see who they share that cause with).

The suicide bombing in Manchester was truly horrific. Words seem inconsequential in these circumstances. What can you possibly say to the friends and family of the victims? There are no words. Only horror and sorrow.

Not everyone is without words, however. As is the case with every prior terrorist attack in the West, attention turns to the motivations of the perpetrator, the beliefs of the perpetrator, the intentions of the perpetrator. Sadly, for some, this consideration of the motives and intentions leads them to consider that it is necessary to curtail civil liberties to prevent further atrocities. We hear this argument made time and time again. We cannot permit a safe space for terrorists, we cannot allow them to communicate and plot away from the gaze of the security services. We must permit mass surveillance if we wish to put an end to the terrorism on Western streets. The reality is that this chipping away of civil liberties will have no effect whatsoever, other than to degrade our civil liberties, limit intellectual freedom and subject us all to state scrutiny.

When I write/talk about surveillance and its effects, I always make it very clear that I am talking about mass surveillance, not targeted surveillance. It’s an important distinction for me. No-one in their rights minds would oppose targeted surveillance. Whilst the targets of such surveillance may often be unwarranted, we accept as a society that the security services should monitor activity where there is a suspicion that a violent act will be perpetrated. Mass surveillance is quite different. It places us all as suspects. It places all of our actions under scrutiny, regardless of whether there is an objective reason to monitor us or not. It is indiscriminate, and it’s an invasion of our civil liberties. It is not a strategy that will have any substantive impact on tackling the wave of terrorism that has affected the West in recent years (not that we should solely be concerned with the relatively low amount of terrorism in the West). Indeed, we will be surrendering our civil liberties on spurious grounds with no material benefit for the state other than to provide it with a wealth of information about every single citizen. A dangerous thing indeed when crisis hit democracies turn to unstable demagogues like Trump.

To date, there is no evidence that mass surveillance would have prevented a single terrorist attack. As Ryan Gallagher outlines here, the perpetrators of a number of terrorists attacks between 2013-2015 were known to the police and/or security services. Post-2015 it continues to be the case. The Brussels attackers of 2016 were known to the police. Khalid Masood was known to the police. The Stockholm attacker was known to the police. Abu Yousif al-Bajiki was known to the police. And Salman Abedi was known to the police.

A US intel official tells @nbcnews members of bomber's family warned sec officials about him in past, that he was “dangerous.”

Despite the fact that they were all known to the security services, the government continues to press ahead with its assault on civil liberties. Following the Manchester attack earlier this week, it has been revealed that:

UK government ministers are planning to enforce new powers that would compel tech companies like WhatsApp and Apple to hand over encrypted messages, according to a report in The Sun.

The report was published less than 24 hours after Salman Abedi blew himself up at the Manchester Arena, killing 22 people in the process.

The UK government reportedly intends to lobby MPs to ensure that new rules — being referred to as Technical Capability Notices — get passed through Parliament soon as the general election is over on June 8.

It is hard to see how this is justified. When it is clear that these individuals are known to the security services, it is unclear why there is a need to facilitate access to encrypted messages (effectively ensuring a backdoor), particularly when it places all of us at risk. (And when I say “all”, I should more accurately point out that it will affect us all disproportionately, particularly in terms of race.)

Many people working in libraries get jumpy about the argument that we should be encouraging the use of encryption in libraries, not least because they argue we should not impede attempts to apprehend those engaging in criminal activity. But it’s important to remember that these tools only really offer protection for the average member of the public, they do not protect those that are of interest to the security services. If you are a target of the state, no amount of privacy orientated tools will protect you. They will protect you against mass harvesting of data, but they will not hide all of your activities from the state.

In all of the incidents referred to above, better targeted surveillance is the answer. Forcing the tech companies to install backdoors, or to “ban encryption“, is not a solution. It merely places at all at risk. Indeed, given the tacit acceptance that there are rogue forces operating online, it seems the height of irresponsibility to make everyone more vulnerable rather than ensuring our security to protect against such elements.

Making the case for civil liberties in the aftermath of any terrorist attack is difficult. Arguing for greater privacy in our libraries is not an easy case to make when government and media argue that such privacy is an impediment to preventing terrorist attacks. The reality is that ensuring privacy protects the most vulnerable, it does not protect those that seek to commit atrocities. The alternative to mass surveillance is not no surveillance at all, rather it is better targeted surveillance. When it comes to protecting library users, we need to ensure we don’t fall into the trap of believing the former, no matter how hard the government or media try to persuade us otherwise.

Free speech has become the hot topic de jour amongst the chattering classes. Barely a day goes by without some new threat to free speech emerging. Indeed, it seems to have become somewhat of a middle class obsession, which is perhaps unsurprising given that many of the so-called threats to free speech are actually threats to middle class privilege and effectively seek to strike a balance between those with privilege and those without (hello safe spaces). So threatened have the privileged become, the adolescent middle class journal of choice (hello Spiked!), has even launched a “campaign for free speech in higher education” – a campaign that peculiarly obsesses with one particular aspect of free speech, but spending little time on the broader issue.

To a certain extent (not entirely, I’m not for one moment suggesting most don’t engage in discussions around this topic), librarians and the profession in general have tended to neglect the debate on intellectual freedoms, preferring instead to pontificate on areas that are traditionally private sector obsessions. It’s curious as to why this is the case. After all, our profession is steeped in the principles of intellectual freedom. We believe people should read and access what they want, we believe that censorship is a bad thing, we believe that access to information should be equal to all. Yet despite this, whilst we live in an environment where intellectual freedoms are apparently up for discussion, there is little space occupied by a profession that should be seeking to defend such freedoms. There is certainly plenty for us to get worked up about…

Recent developments have highlighted the extent to which our non-engagement (our “neutrality”?) is having a detrimental effect on public discourse. According to the principles outlined by CILIP, we are minded to ensure “commitment to the defence, and the advancement, of access to information, ideas and works of the imagination” and “respect for confidentiality and privacy in dealing with information users”. Yet are either of these possible when mass surveillance exists? Does mass surveillance not pose a threat to our ethical principles and, by extension, our existence? Without our ethical principles, surely we are no better than the volunteers we claim deliver an inferior library service?

The threat to our ethical principles particularly manifests itself via the “chilling effect” of surveillance strategies – that is, that knowledge of surveillance activity impedes our intellectual freedom, resulting in modifying our communications and information seeking for fear of being watched and, ultimately, punished (regardless of whether the punishment is based on an incorrect interpretation of activity). This effect has long been debated and argued, and to an extent the jury is still out on the extent to which it exists. However, it does pose a particular threat to us as professionals, one that undermines our ethical principles and, therefore, calls into question our existence. (Surely ethical principles are what divide us from volunteers providing library services?)

This notion of a “chilling effect” is not exactly a radical one. In 1967, the President’s Commission on Law Enforcement and Administration of Justice concluded that:

“In a democratic society privacy of communication is essential if citizens are to think and act creatively and constructively. Fear or suspicion that one’s speech is being monitored by a stranger, even without the reality of such activity, can have a seriously inhibiting effect upon the willingness to voice critical and constructive ideas.”

This was, of course, long before the kind of mass surveillance we are familiar with now had emerged. This impeding of the ability to voice critical and constructive ideas is one element of the impact of the “chilling effect”. But to be able to voice critical and constructive ideas you must be able to seek out ideas that challenge the status quo, that provoke critical reflection on the democratic process.

More recently, further research has suggested that there is a very real “chilling effect” following mainstream awareness of surveillance strategies conducted by the NSA and others. A recent study by Oxford’s John Penney [SSRN link, sorry!], for example, found a notable decrease in visits to contentious topics on Wikipedia following the Snowden disclosures. Penney found that there had been a…

“20 percent decline in page views on Wikipedia articles related to terrorism, including those that mentioned ‘al Qaeda,’ ‘car bomb’ or ‘Taliban.’”

“…users were less likely to search using search terms that they believed might get them in trouble with the U.S. government”

Furthermore, the US Department of Commerce underlined the extent to which a “lack of trust” in internet privacy and security may deter online activity. Following a survey asked of 41,000 households with more than one internet user, it was clear that many felt that government surveillance had an impact on their expression of ideas online. According to their analysis:

“The apparent fallout from a lack of trust in the privacy and security of the Internet also extends beyond commerce. For example, 29 percent of households concerned about government data collection said they did not express controversial or political opinions online due to privacy or security concerns, compared with 16 percent of other online households.”

They conclude that:

“…it is clear that policymakers need to develop a better understanding of mistrust in the privacy and security of the Internet and the resulting chilling effects. In addition to being a problem of great concern to many Americans, privacy and security issues may reduce economic activity and hamper the free exchange of ideas online.”

“If people are spooked or deterred from learning about important policy matters like terrorism and national security, this is a real threat to proper democratic debate.”

But what has this got to do with librarianship? Returning to those CILIP ethical principles, it’s clear that we have an obligation to ensure equal access to “information, ideas and works of the imagination”. Furthermore, it is clear that in an environment of mass surveillance, where the populace are aware that their online activities are observed and processed, individuals cannot exercise this freedom to access information because the “chilling effects” impedes them. The consequence of this is not only a reluctance to seek out critical ideas, but also a reluctance to communicate them. You cannot, ultimately, have free speech when you exist in conditions of mass surveillance. The conditions brought about by this “chilling effect” do not allow for it, unless you have the privilege to possess knowledge and skills about the techniques you can use to protect your information seeking habits and communications of course.

For me, this is where we need to be much stronger…because our ethical principles demand that we are much stronger. We should not, as a profession, accept the Investigatory Powers Bill and the threat it poses to us as professionals, undermining a key ethical principle to which we supposedly adhere. Equally, we should do more to protect our communities. Here the United States is well ahead of us, thanks to organisations such as the Library Freedom Project, as well as some efforts by the ALA and the Electronic Frontier Federation (which is non-librarian, but has played a key role in advancing the cause of intellectual privacy). Whilst moves have been apparent in the UK (see the recently announced Crypto Party in Newcastle), we have been far too slow to defend these core ethical principles. Perhaps this is down to a historic indifference in the UK towards free speech (see our libel laws as an example for how little value we place upon it – another example of the extent to which liberal values are something that only the privileged can enjoy). The extent to which there is a “chilling effect” on intellectual activity is debatable but so long as it is, we need to be at the forefront of that debate – both in terms of discourse and action.

It recently emerged that Twitter has added the need to register mobile phone numbers as part of the sign-up procedure when creating an account to use the network. The move is, as is always the case, presented as part of their effort to protect those that use the service, particularly from abusive trolls. However, as with all such protections, it only offers protection to a degree and does actually create more danger for others.

For those of us that live in Western ‘liberal’ countries, the requirement to provide a mobile phone number is perhaps not massively problematic. It is fairly easy to obtain a mobile and use it without having an data connected to that phone (if you’ve watched The Wire you’ll know that those that wish to protect themselves from the law will use so-called “burner phones”). Outside of nations like the UK and the US, particularly in authoritarian regimes, there are far more hoops that need to be jumped through and the possibility of obtaining a so-called burner is fairly slim. As The Guardian noted, Turkey requires all mobile phones to be registered and a passport is required to obtain a sim card and mobile number.

The request to provide a mobile number in order to use the service is therefore troubling for those living in authoritarian regimes. As we know, communication tools that provide anonymity have played a role in overturning a variety of authoritarian regimes (although the extent to which these tools have played a role is perhaps overstated). Anonymity in Western liberal states may be perceived as a tool to harass and intimidate individuals, but in less democratic states they are essential for survival and for hope. Without this cover of anonymity, lives can and will be placed at risk. Anonymity maybe a troubling concept from our point of view (not least given the media coverage) but it is essential. When weighing up the social cost, the removal of anonymity will come at a much greater cost than if it was to be maintained.

Trolls are an unpleasant side effect of creating a space where everyone can engage in public discourse. But whilst there is a need to figure out how we tackle this phenomenon, we also have to accept that the internet will probably only ever be an imperfect space and that imperfection is what makes it so valuable. Because so long as there as there is anonymity, there will be trolls. But there will also be opportunities for dissidents to communicate, organise and challenge the status quo. Whilst I would not wish to minimise the harm that trolls cause to individuals (as I’ve stated before, I don’t buy into this current “right to offend” trend), I prefer to think of the positive impact of anonymity. The potential it provides for people to be free. Either free to engage in discourse without fear of reprisal or harm, or to seek to secure freedom from state oppression.

Of course services such as Twitter have to seek to protect those that use the service. But, when it comes to the internet, every measure of protection can also do great harm. This is true of removing the right to anonymity for those who wish to communicate free from fear of reprisal, but also in creating internet filters that prevent people from accessing information. Those filters may provide some benefit in terms of the things that they block, but they will also prevent those who are most vulnerable from accessing the information they need. Such measures are presented as offering protection to individuals (indeed, isn’t this always how states present measures that repress individual freedoms?), when in fact this is only partially the case. Protection for some, insecurity or danger for others.

Ultimately, we must seek to defend the right to remain anonymous online. It is not always comfortable, but then defending our freedoms to the fullest extent will never be entirely comfortable because we understand that there are those that will abuse the freedoms we are advocating. But we have to accept that the benefits of protecting anonymity far outweigh the consequences of removing this protection. Because the consequences of this will not be felt in the middle-class suburbias of the West, but within the communities seeking to throw off the chains of oppression.

There has been a growing trend in recent years to argue that there is effectively a “right to offend”, that people do not have a right to take offence. But is there a “right to offend”? It certainly seems that an increasing number of people believe that there is such a thing (this often comes mixed in with arguments over the right to free speech), from Cristina Odone to David Cameron to Stephen Fry to Ricky Gervais. Confounding what one might reasonably expect, this notion of the “right to cause offence” has embedded itself across the political spectrum. Everyone from the liberal left to the far-right have pushed the line that no-one has the “right to be offended”, based on the notion that people choose to be offended by speech and can choose not to expose themselves to hateful messages and harmful language if they don’t want to see it. As far as the defenders of this so-called “right” are concerned, words are incapable of causing actual harm and therefore any sense of “offence” is meaningless. Of course, this train of thought relies on the belief that words are devoid of any social, cultural or historical context and merely exist in isolation. Which, of course, they do not.

The right to offend

We’ve seen the rise in this “right to offend” mentality in light of the attack on the “satirical” magazine Charlie Hebdo. Here, again, the argument that we should be able to offend whoever we want emerges. It is, so the proponents argue, the right of the cartoonists to insult Muslims, whether they are rich or poor, in positions of power or the disenfranchised. Unlike good satire (which should always punch up not down), broad brush cartoons attacking Muslims are indiscriminate. They do not distinguish between those in power and those without.

When it comes to free speech, we have already accepted as a society that this is not an absolute right. There are limits enshrined in law (although there are those who argue that these limits should not apply). Freedoms have to be balanced, we cannot argue that all rights are absolute, as there are times when these freedoms come into conflict. For example, the right to be able to live in a safe environment and not feel threatened by others, surely trumps the right to free speech (particularly when it comes to racism, sexism, ableism, homophobia etc). Not for nothing did the German constitution of 1949 stipulate that:

“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”

We all have a right to live with dignity, to live free from the threatening and abusive conduct of others.

Furthermore, we cannot overlook our responsibilities in exercising our right to free speech. One cannot use language that is offensive or threatening to minorities or marginalised groups whilst also detaching oneself from the responsibilities inherent in using such language. As Will Self recently argued, “our society makes a fetish of ‘the right to free speech’ without ever questioning what sort of responsibilities are implied by this right”. We have to be responsible for the language we use and the harm it causes. We cannot wash our hands of it and push the responsibility solely onto the victim for their response.

It is necessary to accept that there are limits, whereas the “right to offend” suggests there are none. And yet, as a society we have accepted that there are limits. As Gary Younge points out in The Guardian, every country restrains free speech to a degree:

Far from being “sacred”, as some have claimed, freedom of speech is always contingent. All societies draw lines, that are ill-defined, constantly shifting and continually debated, about what constitutes acceptable standards of public discourse when it comes to cultural, racial and religious sensitivities. The question is whether those lines count for Muslims too.

Indeed, France has been struggling with this in the light of the terrorist attacks, arresting those who have made distasteful “jokes” seen to be in support of those responsible for the series of murders that rocked the country.

We have, as a society, broadly accepted that there is a right to be offended (albeit in very particular terms ie hate speech). It’s no real surprise to find that the vast majority of those who defend the “right to offend” are white, middle class males. These individuals cannot be “offended” because their culture is not under threat they are the ones who, after all, wield the power in our society. When you have power, what is there to be offended by?

Free speech and religion

Although I am a (fairly militant) atheist, I tend to see that there is a significant difference between criticising a religion such as Islam and Christianity in the West. We often hear that Christianity is an easy target – we’re all happy to laugh at Christianity, but wouldn’t dream of doing so with regard to Islam. There is, of course, a substantial difference between the two. We live in a country built on Christian beliefs, on Christian traditions. I grew up in a Christian country. A country where Christianity wields power that other religions do not – 26 bishops sit in the House of Lords and can make or break government legislation. No other religious group has such representation at the seat of power.

We do not have a “right” to mock Christianity per se, but mockery in the face of a force that wields power is reasonable, particularly as it is the dominant religious identity. Islam, on the other hand, is not. It is not part of my cultural heritage and is certainly not accepted as part of our supposed “shared cultural identity”. I have no connection to it. It is something ‘other’. It is not my place to lampoon it because it is not my culture to lampoon. I have no understanding of Islam and its tenets (even if I did, I would still feel uncomfortable exclusively ridiculing a religion that is not part of my cultural heritage). However, I do have ample understanding of Christianity. Mocking Islam as someone brought up in a Western Christian cultural environment makes me feel very uncomfortable. I would not mock other aspects of others’ cultural heritage or identity so why should I mock their beliefs, no matter how irrational they appear to be?

Our freedoms…

Meanwhile, whilst the best efforts have been made to ensure our eyes are diverted towards the many millions of people who had nothing to do with the attack (apart from suffering from the attackers’ lie that they are one of them), the real satire has been gradually unfolding. We’ve been subjected to passionate pontifications about the importance of the freedom of the press, pontifications that ring more than a little hollow when placed in their proper context. As is typical of those in power in desperate need of some good PR, leaders with a questionable commitment to human rights have used the murderers of the Charlie Hebdo cartoonists to assert commitments to free speech and a free press. Not only are our leaders engaging in such stunning cynicism, but prominent voices in the media (ironically) have also been keen to jump on Islam and assert the importance of a free press.

Take Douglas Murray for example. Associate Director of the Henry Jackson Society and media spokesperson for the neoliberal far-right. Whilst he laments the state of the free press with regard to its collective failure in the UK to reprint the cartoons that supposedly led to the deaths of 12 individuals, he has not always been the greatest defender of a free press when it comes to confronting the danger of an over-powerful state. A free press when it comes to attacking those least likely to do us harm, versus that of a state that can exert its power over us at will.

Then there are the numerous leaders who announced that they were “Charlie Hebdo” on the streets of Paris. How hollow their words sounded when they are guilty of repressing the free press within their own states. And this hypocrisy didn’t just afflict those from countries in the Middle East and beyond. Indeed, no sooner had David Cameron announced to the world “je suis Charlie”, than he was back home announcing his (laughably idiotic) intentions to ensure that no-one can ever have a private conversation ever again.

A free press should only be defended, it appears, if it is sticking the knife into a minority group rather than those occupying the seats of power. Yes, this is the kind of free speech that must, apparently, be defended – the kind that punches down rather than punches up.

What we should be watching is not the many millions of Muslims throughout the world who merely wish to practice their religion in peace (no matter what we may feel about religion in general) but, as any good satirist would tell you, it’s the state. The powerful. We should be looking up, not looking down. For whilst the state wants us to focus on millions of people who have nothing to do with the atrocities supposedly carried out in their name, they will use this opportunity to remove the freedoms they claim bind us together as part of some notion of shared values. It happens time after time (even to those who are supposed to be watching the state closer than most). They preach solidarity with us, but the reality is that the state is often the enemy of the people and we should never allow their games of distraction to permit us to forget this.